Wednesday, May 20, 2009

The following bill would add some clarity for parents. The poorly reported case of Jimmy Mason who was convicted for assault on a child does nothing to clarify matters. We do not know whether he was convicted for flicking his son’s ear which is technically assault or punching his son in the face.

Crimes (Reasonable Parental Control and Correction) Amendment Bill

Member’s Bill

Explanatory note

The purpose of this bill is to repeal and replace section 59 of the Crimes Act 1961 so that: parents, and those in the place of parents, are no longer committing a criminal offence if they use reasonable force to correct their children’s behaviour; there are clear statutory limits on what constitutes reasonable force for correction; parents, and those in the place of parents, have certainty about what the law does and does not permit when they are controlling or correcting their children; and an explicit reliance on Police discretion is no longer used in an attempt to protect parents from the consequences of prohibiting the use of reasonable force for correction.

Parents have obligations to their children, including an obligation to teach them and provide guidance. Sometimes this requires parents to correct their children’s behaviour for the children’s own benefit, to help them grow into maturity. Article 5 of the United Nations Convention on the Rights of the Child, to which New Zealand is a signatory, states that "States Parties shall respect the responsibilities, rights, and duties of parents … to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention."

In many cases, parental guidance and correction will be non-physical. However, in some cases a parent may reasonably decide that correcting their children’s behaviour requires some degree of physical action. In these cases, section 59 says that parents are committing the crime of assault. Section 59(2) says that "Nothing … justifies the use of force for the purpose of correction."

This ban applies to any physical contact by a parent where the intention is to correct their child’s behaviour. This includes, for example, lifting up an unwilling child to put them into their room for "time out" as well as giving a light "smack."

As a result, the law can prevent parents from parenting effectively. It is inconsistent with society’s standards for good parenting; opinion polls consistently reveal public agreement that parents should be able to use a mild degree of physical correction.

This bill will allow parents, and those in the place of parents, to use reasonable force to correct their children’s behaviour, while providing clear limits on what is reasonable. Force will be unreasonable if it causes injury that is "more than transitory and trifling," if it is "inflicted by any weapon, tool, or other implement," or if it is inflicted by "cruel or degrading" means. Courts are not limited from finding that other types or instances of force are unreasonable. The limitations on what is reasonable apply to corrective and non-corrective force.

However, there are circumstances where a parent may reasonably use force in a way that causes their child some harm to prevent a greater harm, for example by knocking them out of the path of an oncoming vehicle. So that the law does not rule this use of force unreasonable, this bill provides that the automatic prohibitions on force causing injury that is "more than transitory and trifling," or force that involves the use of a "weapon, tool, or other implement," will not apply where the person applying the force believes on reasonable grounds that it is necessary to prevent death or serious harm to the child or another person.

Section 59 is intended to provide children with greater protection against violence and abuse. However, reasonable physical correction is not violent or abusive. Allowing parents to use reasonable physical correction, with clear limits on what is reasonable written into the law, will protect children from harm while offering parents appropriate legal protection.

Although section 59 bans physical correction, it is often unclear to parents whether using reasonable force is permitted or whether it breaks the law. This is because section 59(1) allows parents to use reasonable force to prevent certain types of behaviour and to perform "the normal daily tasks that are incidental to good care and parenting." However, the distinction between prevention and correction is unclear in many cases. Preventing particular actions will often amount to correcting them, especially when the action and the prevention are repeated. This bill will remove that confusion by adding correction to the list of permitted purposes.

Section 59(4) also creates confusion with its reference to Police discretion. According to Members of Parliament, the intention of this subsection is to provide a safeguard against the consequences of banning reasonable physical correction, so that parents will not be "subject automatically to investigation and police prosecution" if they give their child a light "smack" to correct their behaviour. This leaves parents unsure about what is, in practice, permitted, and what standard they will be held to.

Citizens have a right to know what the law requires and not to be subject to arbitrary enforcement. This is part of the principle of the rule of law. Section 59 is inconsistent with this principle. It represents a failure by Parliament to make clear law that gives its citizens certainty about how they may act.

In addition, section 59(4) refers only to the Police. It does not apply to any other agency, such as Child, Youth and Family. These agencies may apply the letter of the law in their interactions with parents. It also does not apply to any private citizen who initiates a prosecution against a parent who has used reasonable force for correction.

This bill will remove the reliance on Police discretion, which will not be necessary when reasonable correction is permitted.

Clause by clause analysis

Clause 1 is the title clause.

Clause 2 provides that the Crimes Act 1961 is referred to as "the principal Act."

Clause 3 provides for the bill to come into force on the day after the date on which it receives the Royal assent.